As we reported earlier, four highly controversial nominees to the federal courts were resubmitted by President Bush right after the election. Now, we can happily report that none of those nominees – Michael B. Wallace, Terrence W. Boyle, Jr., William J. Haynes II and William G. Myers III– will be resubmitted to the new Senate. Wallace withdrew in December and the other three withdrew Tuesday. Marcia D. Greenberger, NWLC Co-President, had this to say following Tuesday’s announcement: “These three nominees were controversial for a reason – they were wrong for the job and wrong for the country. As we start a new year and a new Congress, the President should look to consensus nominees for future vacancies.”

These nominees were extremely controversial for varied reasons. NWLC opposed Wallace because his record presented troubling questions about his most basic commitment to equality under the law. Moreover, he was the first federal court of appeals nominee in almost 25 years to receive a unanimous “Not Qualified” rating from the American Bar Association due to concerns about his judicial temperament and bias. Judge Boyle drew criticism from NWLC for his rulings flouting anti-discrimination laws, his apparent violation of judicial ethics standards, and the large number of his decisions that were rejected and criticized by higher courts. Haynes’ central role in the Bush administration’s anti-terrorism detainee and interrogation policies caused many to question his respect for civil liberties. Finally, Myers’ past anti-environmental actions raised concern about whether he would faithfully enforce our environmental laws as a federal judge.

Fortunately, Senator Leahy’s vow to move forward only on consensus nominees as the new Chairman of the Senate Judiciary Committee seems to have convinced these four and President Bush that their records would not survive the scrutiny of the committee. Now, it’s up to the Judiciary Committee, under Chairman Leahy’s leadership, to ensure that future nominees to the judiciary get the scrutiny that the American people deserve to protect our hard won rights.

All eyes will be on President Bush’s judicial nominations in the new year. The Fourth Circuit, long considered a conservative stronghold, now has several open seats. That court has consistently sided with the Bush administration in legal challenges to its national security policies, and more than one of its judges was believed to be on the President’s short list for the Supreme Court. However, as the Washington Post highlighted this week, the departure of a number of prominent conservatives to private sector jobs and retirement will leave the court split with six Republican and five Democratic appointees in July, with four spots to be filled. Thus, the court’s reliability as an unfailing conservative ally of the administration is now uncertain.

Even under the Republican controlled Senate, some of the President’s nominees to the Fourth Circuit were too controversial to win approval, including U.S. District Judge Terrence W. Boyle, Jr. whose nomination the Center opposed due to his record of ignoring established legal precedents regarding important anti-discrimination protections. Now that the balance of power in the Senate has shifted, nominees will face greater scrutiny by the Judiciary Committee. Whether this will lead the President to nominate candidates who are not conservative ideologues, and who respect constitutional rights and civil liberties, remains to be seen. We will be watching – and ready to respond!

The Judiciary Committee met this morning and postponed a vote on the Kavanaugh nomination to the D.C. Circuit. Committee Chairman Arlen Specter announced that he would allow another hearing for Kavanaugh, as the committee’s Democrats had requested. A new hearing is warranted, so that’s a positive development. This nomination is likely to move quickly after that, however: the hearing will be next Tuesday, May 9, with the committee vote just two days later.

Here we go again: with the right wing clamoring for Senate action on more judicial nominees, Senate Majority Leader Frist announced last week that he will push forward some of the most controversial nominees this month. Two who are high on the list are Brett Kavanaugh, nominated to the D.C. Circuit (generally considered second in importance only to the U.S. Supreme Court), and Terrence Boyle, nominated to the Fourth Circuit.

Kavanaugh, who currently serves in the White House, has generated opposition because (among other things) he has had little relevant experience (almost no litigation experience, for example) and a number of questions have been raised about his record that have never been explored. His Judiciary Committee hearing was two years ago, and since then his rating by the American Bar Association has been downgraded, but the request of Democrats on the Judiciary Committee for another hearing to look into his current record and his role in controversies that have come to light since his hearing – like the President’s domestic spying program and detainee policies – has not been granted by Committee Chairman Arlen Specter. The Committee is likely to vote on this nomination this week and Senator Frist said he wants a Senate confirmation vote by Memorial Day.

Judge Boyle, who is currently a district court judge in North Carolina, is at least as controversial if not more so. A former aide to Senator Jesse Helms, he has a very troubling civil rights record. He has overlooked established legal standards and issued decisions that fly in the face of anti-discrimination laws, including in cases involving discrimination against women. On top of that, it was disclosed just this week that he has presided over lawsuits in which he had an interest in one of the parties – and even ruled in favor of those parties – in apparent violation of judicial ethics standards. Salon.com reports that since he was first nominated to the Fourth Circuit in 2001, he has issued orders in at least nine cases that involved five different corporations in which he reported stock holdings.

Senator Patrick Leahy, the ranking Democrat on the Judiciary Committee, reiterated the need for another Kavanaugh hearing, expressed amazement at the new Boyle disclosures, and noted that other nominees have been withdrawn in the recent past due to ethical lapses – and that Claude Allen, who was once nominated to the Fourth Circuit, was recently arrested for fraud and might have been on the court had the Senate not slowed action on his nomination a few years ago. As Senator Leahy said, these events highlight the importance of serious scrutiny by the Committee and the full Senate to assess the fitness of nominees for lifetime appointments to our federal courts. We’ll soon see whether his colleagues in the Senate have learned the same lesson or prefer the role of rubber stamp.

Yesterday, The Hill, a newspaper that covers Capitol Hill, reported that conservative activists and their allies in the Senate are “growing impatient with the pace of judicial nominations” and are complaining that the nomination process is not moving fast enough. Filling two Supreme Court vacancies in quick succession in just a few months –- one of which was for Chief Justice, no less -- seems like a pretty quick pace to us. Nonetheless, those determined to pack the courts with right wing ideologues seem to have an insatiable appetite. Returning their attention to the lower federal courts, they are urging the White House to hurry up with names for vacancies there and pushing for the Judiciary Committee to “pick up the speed” on pending nominations. Start looking for Committee action on Court of Appeals nominees in the very near future.

Here is our “top 10 list” of things to look for when Judge Alito testifies next week in the confirmation hearing, focusing on issues of particular importance to women. Of course, many other important matters will be in the spotlight as well, such as Alito’s views on the power of the executive branch, unchecked by Congress or the courts, to do things like eavesdrop on U.S. citizens. So our list is hardly exhaustive – but even this short list suggests a hearing well worth watching!

1. Will Judge Alito say not just that he agrees there is a constitutional right to privacy in the abstract, but that he believes that right applies to any issues involving the beginning of life or end of life, other than the use of contraceptives by married couples? (Unfortunately, many people missed the fact that neither John Roberts nor Clarence Thomas before him was willing to accept the right to privacy outside the context of married couples’ use of contraception.)

2. Will he stand by his 1985 statement that he was “particularly proud” of his help in arguing to the Supreme Court “that the Constitution does not protect a right to an abortion” or will he try somehow to walk away from that statement – and if the latter, will his testimony (unlike his past efforts) be at all credible?

3. Will we once again hear “I have no quarrel with that decision,” and will anyone be fooled by this evasion? Recall that John Roberts and Clarence Thomas both said in their confirmation hearings that they had “no quarrel” with important past decisions of the Supreme Court – even though they both later admitted that this did not mean they actually agreed with those decisions, and Justice Thomas, on the Court, went on to attack the very precedents he had said he had “no quarrel” with. 4. How will he walk the stare decisis tightrope – showing enough respect for leaving past precedents alone, even if he disagrees with them, to satisfy those who want Roe v. Wade to remain the law of the land, without raising the hackles of those looking for an added vote on the Court to overturn Roe?

5. Will he stand by his extreme views on the limits of Congress’s power to protect the public, such as his position – repudiated by all nine Circuit Courts to address the issue – that Congress lacks the power under the Commerce Clause to regulate the possession and transfer of machine guns, or his decision striking down a key provision of the Family and Medical Leave Act as outside Congress’s authority?

6. Will he make clear that, like Justice O’Connor, he supports a strong application of the Constitution’s Equal Protection Clause to invalidate government discrimination on the basis of sex? And how will he explain away his history on the Third Circuit of repeatedly making it harder for plaintiffs in employment discrimination cases to get to a jury?

7. Will he recover from his amnesia over his membership in Concerned Alumni of Princeton (CAP), the group that was openly hostile to the admission of women and increased enrollment of minorities at his alma mater? (He touted his membership in CAP when he applied for a government promotion in 1985, but said on his Judiciary Committee questionnaire that he now has “no recollection” of being a CAP member.) And how will he explain the fact that he has never repudiated CAP’s activities, when even fellow Princeton alumnus Bill Frist, now Senate Majority Leader, did so many years ago?

8. If he tries to distance himself from things he said in that 1985 job application by suggesting that he was just padding his resume, how will he be able to show that he isn’t just saying what Senators want to hear now, as he seeks a promotion again (to a lifetime position on the nation’s highest court, no less)?

9. Will he recycle the baseball metaphor that John Roberts used over and over in his hearing (judges are neutral umpires, etc), or will he find some other way to make it sound like he either has no legal views of his own or will make his views disappear once he joins the Supreme Court – and will anyone buy this, given everything we know from his lengthy and extreme record?

10. Will he be able to portray himself as an appropriate successor to Justice Sandra Day O’Connor, when so much in his record shows that he is the antithesis of Justice O’Connor, especially when it comes to many key issues for women?

Here’s something that you might have missed during the holiday period: the D.C. Circuit affirmed a lower court decision throwing out a lawsuit brought by a group called Judicial Watch challenging the constitutionality of Senate filibusters of judicial nominations. Of course, we hope that the Alito nomination will be rejected by the Senate without need for a filibuster. But we’ve long maintained that filibusters of unacceptable judicial nominations are valid and constitutional. The D.C. Circuit didn’t reach the merits of that issue, but on December 23 it issued a ruling that Judicial Watch could not proceed with its lawsuit against the U.S. Senate because it lacked standing -- that is, it had failed to show that any harm had been caused by past filibusters of judicial nominations, such as delays in filling judicial vacancies or delays in the disposition of cases.

Judicial Watch had asked the court for an injunction against the Senate rule requiring a supermajority (60 votes) to cut off debate on a judicial nomination. The court noted, correctly, that if that Senate rule were struck down, what would remain would be Senate rules that allow unlimited debate – hardly an end to filibusters! So in essence, the court said, Judicial Watch was asking the court not just to strike down a rule but to re-write the Senate rules altogether, to do away with filibusters of judicial nominations. That would amount to a clear-cut case of “judicial activism” – and, not surprisingly, the court declined to go down that path.

This means that an Alito filibuster remains possible under the Senate’s standing rules. We think Alito’s record should lead a simple majority of the Senate to say “no” to this nomination, so that no filibuster is necessary. But we’re pleased that the court’s decision leaves the filibuster option on the table. . . just in case.

No one should be fooled by the explanation offered by President Bush for the withdrawal of the Miers nomination. President Bush claimed that the nomination could not go forward because Senators “would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House – disclosures that would undermine a President’s ability to receive candid counsel.” Here’s why this can’t be the real reason: no Senators had actually demanded documents showing Miers’ advice to the President, let alone said they would block her confirmation if such documents were withheld.

The Judiciary Committee’s questionnaire did ask Miers to identify constitutional issues she has worked on in the White House, and to provide copies of materials reflecting her familiarity with and views on such questions. As the Committee explained, this was to allow the Committee to learn about her experience with and views on important constitutional issues – a perfectly reasonable, indeed necessary, part of fulfilling the Senate’s constitutional duty of advice and consent. But Senators gave no indication that they were unwilling to work with the White House to get information they needed while letting the White House hold back sensitive materials to the extent possible.

As we’ve said before, there is wide agreement among scholars and former White House Counsels that the appropriate way to balance the Senate’s needs and the White House’s confidentiality concerns would be to negotiate over what documents to produce and how to produce them. The White House could have at least begun this process to see if a mutually acceptable approach could be found. Instead, the President seized on a fictional impasse over documents as an excuse to withdraw a nomination that was in trouble for other reasons – like the far-right outcry over her failure to meet their litmus test.

If there’s any doubt about this, just look at the op-ed piece last week by Charles Krauthammer, a conservative columnist who opposed the Miers nomination. He explicitly said, “We need an exit strategy. I have it.” What was that strategy? “Irreconcilable differences over documents.” Citing this, Krauthammer argued, would allow Miers to withdraw “out of respect for both the Senate and the executive’s prerogatives.”

So there you have it. A cover story for pulling the plug on the nomination. There’s just one problem with it: it’s transparently false.

Senators on the Judiciary Committee, from both parties, are saying that the White House should release documents that will shed light on Harriet Miers’ work and views. This past weekend on Fox News, Senator Sam Brownback, R-KS, said “providing this type of information from the White House is almost a risk they assume when you nominate a candidate [for the Supreme Court] that’s from inside the White House. We need to know if we’re going to give advice and consent, and that’s our role in this process – it’s not a rubber stamp.” On the same program, Senator Pat Leahy, ranking Democrat on the Committee, said he agrees with Senator Brownback. Senator Lindsay Graham (R-SC) has also said he believes the Committee should see documents that “would give us a window” into some of her views. “Where there’s a close call,” he said, “the tie goes toward disclosure.”

Apparently reacting to these developments, yesterday President Bush said that requests for “paperwork” about White House decision-making or Miers’ recommendations to him would not be granted. We hope that doesn’t signal an absolute refusal to turn documents over to the committee. As we have said, that position is not sustainable. In fact, our view has been echoed in recent days by law professors from across the country.

Last Thursday, over 70 law professors wrote to Senators Specter and Leahy urging the Senate to insist that documents written by Miers, especially concerning issues likely to come before the Court, be produced. They made the case that “President Bush should not be able to invoke executive privilege to prevent the Senate from fulfilling its constitutional duty to evaluate a nominee for the nation’s highest court. . . . If Miers has written memos to the President about cases on the Supreme Court’s docket or about issues likely to come before the Court, the Senate has the right to that information.”

Separately, New York University law professor Stephen Gillers, an expert in legal ethics, has written that a “categorical refusal to waive privilege for all of Miers’s advice since January 2001” is not justified. Professor Gillers offers the following advice to the Senate: “If the Administration stonewalls, the senators must stare it down, not buckle. It is an insult to the Senate and the nation for Bush to say that Miers is the best possible choice for the Court, or even a worthy one, and then cavalierly block discovery of the very information that supposedly supports this claim. This is not a partisan issue. It’s about the Senate’s institutional integrity – indeed, its constitutional relevance.”

Or, as Senator Brownback put it, “If we’re to give advice and consent, we’ve got to have a full picture.”

Some of Harriet Miers’ supporters have complained that it is sexist to challenge her fitness for the Supreme Court. We beg to differ. Her nomination raises a number of valid concerns – about what’s in her record as well as what is lacking – that are wholly unrelated to her gender. At the same time, there have been some criticisms of Miers that do smack of sexism. Criticizing a female nominee with a troubling record while objecting to sexist attacks on her – what’s so hard about that? As columnist Ellen Goodman put it, it’s possible to walk and chew gum at the same time.

That is just what we’ve been doing. While we have not taken a position on the Miers nomination, we have mounting concerns about it. For one, the anti-choice positions she has subscribed to raise serious red flags. And her reported refusals to answer some of the most basic questions that Roberts addressed raise the issue of whether she won’t be forthcoming – or can’t be because she’s not up to it. Neither explanation is very reassuring.

We are examining her commitment to core legal rights essential to women, her grasp of key constitutional issues, and her general fitness for the Court. We won’t fault her for lacking credentials that were off limits to her because of her gender. As NWLC Co-President Marcia Greenberger pointed out, it is unfair to denigrate Miers’ resume for lacking a Court of Appeals or Supreme Court clerkship when most of those clerkships simply were not offered to women at the time she graduated from law school. But we will hold her accountable for her judicial philosophy and her overall fitness to serve on the Supreme Court.

So you’ll hear from us when we see a judicial nominee, female or male, who we think will do harm to women’s rights and who we conclude doesn’t belong on the Court. And we won’t sit demurely by when we see sexist attacks on a female nominee.

Update

NominationWatch.org is currently on hiatus until major developments in nominations occur. In the meantime, please visit Womenstake.org, NWLC's new multi-issue blog. Please continue to come to NominationWatch.org for archival information and resources on court decisions, trends, and lower court nominations.